Our View: A business decision, by God

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Posted Jun. 30, 2014 at 8:43 PM

Posted Jun. 30, 2014 at 8:43 PM

The U.S. Supreme Court is back to its 5-4 self, ruling on Monday that the contraception mandate for some employers in the Affordable Care Act is unconstitutional, in violation of a First Amendment that guarantees Uncle Sam will stay out of the “free exercise” of religion.

The high court saved its most controversial decisions for last. That adjective certainly described this issue, as it went to the core of religious liberty and the limits of government from one perspective to the rights of women from another. Many Americans picked sides, and they did not necessarily break down along predictable ideological lines.

Indeed, while many may view this as just another one of those high court decisions on a hot-button topic falling along its conservative/liberal fault line, perhaps more revealing is that the five justices in the majority — Roberts, Alito, Scalia, Thomas, Kennedy — are all men, and are all Roman Catholic (as is Sotomayor, who was in the minority), with their church not exactly taking a neutral stance on this matter. The Peoria Diocese joined one lawsuit opposing the ACA mandate, though the cases that made it to the Supreme Court — Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Burwell — were brought by Christian evangelical and Mennonite business owners, respectively.

That’s not to suggest this outcome is wholly without constitutional justification. The First Amendment’s language is pretty straightforward, and clearly the court majority — its opinion authored by Justice Samuel Alito — did not believe the boss’s civil rights cease the second he walks through the office door. Other contraceptive access remedies — government-subsidized programs, for example — exist that do not burden employers of faith by requiring them to violate their consciences or else pay a penalty, wrote Alito, who also insisted that the decision is narrowly drawn to include only “closely held,” or family-owned businesses.

We’ll see.

Arguably this decision pokes a hornet’s nest, which is one of the reasons we advised the White House to “leave well enough alone” when this issue first surfaced, when ObamaCare needed to be adding friends, not courting enemies, including liberals of faith who might normally have been sympathetic but viewed this particular aspect of the law as a government overreach. It’s worth noting that the court majority leaned heavily on the Religious Freedom Restoration Act of 1993, which was introduced by Democrat Charles Schumer (then in the House), passed overwhelmingly and was signed by President Clinton on the basis “that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion.” The majority obviously believed it wasn’t high enough here (though some RFRA backers now claim it was misinterpreted).

Page 2 of 2 - President Obama seemed not to understand or appreciate the culture with which he was picking this fight, seemed not to get that people of deep religious conviction would go out of business or drop health insurance altogether — both of which would defeat the purpose of the legislation that bears his name — before they would participate in any “intrinsic evil,” anything that even remotely smacked of abortion, which is how they perceive some contraceptions. “Pro-choice” and “mandate” are not what you’d call compatible terms.

In any case, few on either side seem to have thought through all of the potential consequences, with the possible exception of Justice Ruth Bader Ginsburg, who viewed this issue more through a female health care lens than a religious one but raised other legitimate concerns regarding precedent. This decision “of startling breadth” is “bound to have untoward effects,” she wrote. “The court’s expansive notion of corporate personhood invites for-profit entities to seek religion-based exemptions from regulations,” and not just the ACA’s. Religious objections to environmental rules are not unheard of. Once upon a time the Bible was invoked to defy civil rights laws. Sometimes it’s more about the bottom line.

As always, there’s the slippery slope: “Would the exemption … extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus) ... vaccinations ...?” asked Ginsburg. Beyond that, could an employer who believes in the biblical instruction to “be fruitful and multiply” refuse to help cover a needed hysterectomy? What rights do workers who don’t share the boss’s beliefs have? Why must reproductive medicine have its own category, apart from all other health care? Why was Scalia of a very different mindset 25 years ago (Employment Division, Department of Human Resources v. Smith, 1990), when he insisted there be no religious exclusions to generally applicable law (which prompted RFRA)?

“The court, I fear, has ventured into a minefield,” indicated Ginsburg.

Long-term, this matter will be decided at the ballot box and in the marketplace. In the meantime, unleash the Law of Unintended Consequences?